74 Ga. 493 | Ga. | 1885
This was a bill exhibited under the act of the general assembly of 1880 and 1881, — Code, §3149, (a), (b), (c), (d), (e) and (f) — for the purpose of collecting and appropriating to the use of the creditors the assets and effects of a firm of alleged insolvent traders, who had failed at the maturity of one or more of their debts to pay the same, and had refused so to do upon proper demand made. The bill, among other things, prayed an injunction and the appointment of a receiver. If filed at all in the office of the court to which it is returnable, it was filed on the night previous to the execution by the firm of the assignment containing preferences, which it seems to- have been its purpose to set aside; but this alleged filing occurred previous to the sanction of the bill by the chancellor by which a temporary restraining order was granted and a ieceiver appointed temporarily. On the final hearing of this preliminary sanction, the chancellor revoked it, and refused1 the extraordinary relief prayed, upon this among other
While we are strongly inclined to the opinion that the filing of this bill under, any view of the facts disclosed by the record was not available as notice, which is ordinarily, implied from\a lis pendens, and that the assignment is not affected thereby, yet we hold that, under the peculiar provisions of the act in question, taken in connection with other cognate provisions of the law, it was not the filing contemplated to prevent such preferences by insolvent persons as may be made lawfully. This act has always been subjected to a strict construction, and unless a party brings himself within its very letter, the relief it provides has been invariably denied. If the assignment was otherwise valid, the filing of the bill in the clerk’s office did not, under the circumstances, render it invalid, and upon its execution and delivery, the assignors ceased to be traders; and, as the complainants could get nothing from the preferred creditors under such circumstances, there was no case made for an injunction and receiver, and the judge exercised his discretion properly in refusing either or both of them. 67 Ga., 52; 69 Id., 492.
That this was not the filing contemplated and required by the act, we think is evident from section 3149 (b) of the Code, which provides that the chancellor, under such pro
Judgment affirmed.